Yesterday GOP Congressman Mike Kelly, GOP congressional candidate Sean Parnell, and five others filed an Emergency Application for a Writ of Injunction with Justice Samuel Alito of the Supreme Court, seeking to prevent Pennsylvania officials from taking any remaining steps to certify the election result or name Electors for Joe Biden to the Electoral College.

This is a very interesting development and will give us a strong indication as to the willingness of the Supreme Court to enter into the election litigation brawl.

Justice Alito has been the most outspoken member of the Court with regard to the election process in Pennsylvania, and the actions of the Pennsylvania Supreme Court both before and after the election.  Justice Alito spent much of his legal career in New Jersey and was a Judge on the Third Circuit Court of Appeals from 1990 to 2005.  The Third Circuit handles all cases coming from Pennsylvania.  Justice Alito is no stranger to the judicial system of Pennsylvania, nor the partisan nature of the Pennsylvania Supreme Court given the way Judges are elected to that Court.

When the US Supreme Court denied expedited review of the appeal filed by the Republican Party of Pennsylvania over the Penn. Supreme Court’s extension of the “received by” deadline for mail-in ballots, Justice Alito wrote:

The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems. The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office.

He went on:

The court expressly acknowledged that the statutory provision mandating receipt by election day was unambiguous and that its abrogation of that rule was not based on an interpretation of the statute. Id., at 43a. It further conceded that the statutory deadline was constitutional on its face, but it claimed broad power to do what it thought was needed to respond to a “natural disaster,” and it justified its decree as necessary to protect voters’ rights under the Free and Equal Elections Clause of the State Constitution.

Maybe it’s just me, but those don’t sound like words from a Justice who is of the view that the Penn. Supreme Court has done nothing wrong.

Later, in the same matter, Justice Alito issued an Order directing Penn. County Boards of Election to segregate all ballots received after the statutory deadline of 8:00 pm on November 3 so that the Court could fashion a remedy with regard to those ballots if the Court was to, in fact, vote to consider the Petition for review filed by the Pennsylvania GOP and the Trump Campaign.  He did so after it was suggested that not all Counties were following the “Guidance” in that regard issued by the Secretary of the Commonwealth based on a view in those counties that they were not bound by Pennsylvania law to follow the Guidance.

Justice Alito has the authority under Supreme Court rules to issue the Emergency Injunction on his own authority, and then refer the matter to the entire Court for further consideration.  The Justices are individually assigned to the 13 Circuit Courts of Appeal for purposes of receiving matters such as this, and take action individually in order to act promptly in situations with time is of the essence.  This is the same process that is engaged in when counsel for a prisoner facing a “death sentence” is facing imminent execution, and his attorneys are seeking an emergency injunction to prevent the sentence from being carried out.

The Application includes a lengthy “procedural history” section that I’m skipping past, as well as a recounting of the factual events leading to the filing of the Application.  One thing to keep in mind, however, is the facial “unfairness” — from a procedural standpoint — of the treatment received by the Plaintiffs in the Penn. Supreme Court.

The Plaintiffs filed their action in the Commonwealth Court of Common Pleas where all litigation begins, which was followed with each side filling “Preliminary Objections” and “Answers” as ordered by that Court and called for in Pennsylvania’s civil procedure rules.  The State Defendants then filed an appeal with the Penn. Supreme Court asking that the case be taken up by that Court based on its “extraordinary jurisdiction”, and briefing the legal arguments for why the complaint should be dismissed.  Three days later the Penn. Supreme Court dismissed the Complaint without ever seeking or considering a response from the Plaintiffs, and without any evidentiary record to support the factual claims made in its Opinion.

The Emergency Application lays out very clearly the claim that “voting” in Pennsylvania — based upon 158 years of unbroken Penn. Supreme Court precedent — is defined as the in-person delivery of one’s ballot for counting.  The Penn. Supreme Court has previously rejected in multiple cases the use of the mail for delivery of ballots on the basis that such delivery is contrary to the definition of “voting” in Pennsylvania, with the exception of the four classes of “absent electors” defined in the Pennsylvania Constitution.  ALL other “electors” are required, as consistently held by the Penn. Supreme Court, to deliver their ballots in person.

The one concern that exists is whether there is any “federal question” involved in the disposition of the case at the state level.  Normally the US Supreme Court leaves final decisions on the meaning of state laws and state constitution to the highest court of a state.  The Plaintiffs address that issue by arguing that their due process rights under the Fifth and Fourteenth Amendments were violated by the decision of the Supreme Court which denied them any meaningful avenue of access to the courts without “notice” and an “opportunity to be heard” which are hallmarks of “due process”.

The Plaintiffs also make the interesting argument that by acting in a manner contrary to the Pennsylvania Constitution, on an issue where the State’s authority is directly received from the United States Constitution, the adoption of “no excuse” mail-in voting violated that authority.

The “manner” of selecting electors and conducting elections is committed to the “legislature” of each state by the “Electors” and “Elections” clauses of the federal Constitution.  The State of Pennsylvania has adopted a “manner” through the State’s Constitution and has required a majority vote of the electorate to change.  Any change to the “manner” that does not comply with the State’s Constitution violates the US Constitution’s clause committing the “manner” to the State’s legislature in the first instance.  In effect, the Pennsylvania General Assembly’s passage of Act 77 violated the limits that the General Assembly placed on itself in terms of the “manner” in which Electors are selected.

I did this very lengthy article yesterday on the application of the equitable defense of “laches” by the Penn. Supreme Court to bar the Kelly complaint from the Pennsylvania Courts – dismissing the action altogether with prejudice.  The Emergency Application makes a very significant claim related to this issue that I was unaware of before going on to challenge the determination that “laches” applied.

The application claims that an earlier decision of the Penn. Supreme Court in 1970 held that voters lacked standing prior to an election to challenge a statute which would allegedly allow invalid “absentee elector” ballots to be cast and counted.  This is a key argument because the justification for the Penn. Supreme Court’s dismissal of the Kelly complaint on the basis of “laches” was that they did not bring the challenge to the statute prior to the election.

The case cited is Kauffman v. Osser, and the Plaintiffs are ABSOLUTELY CORRECT as to the prior ruling of the Penn. Supreme Court.  In Kauffman, three voters who planned to vote in person in the upcoming general election sued the Board of Elections in Philadelphia County ahead of the election to obtain a declaratory judgment that certain absentee ballots should be declared invalid and not counted.  The ballots in question would be submitted by “absent electors” who were “on vacation” on the date of the election.  The Pennsylvania General Assembly had passed the “Absentee Ballot Law” in December 1968, extending “absentee elector” status to such voters.

In affirming the lower court’s dismissal of the complaint, the Penn. Supreme Court went through the basic “standing” analysis to determine whether the three plaintiffs in the case had a “particularized” interest distance from the interest of all voters in general, and a “concrete” injury, in fact, that would qualify them to bring the action to invalidate a statute.

Many years ago in Smith v. McCarthy, 56 Pa. 359, 362 (1867), we said: “Even supposing the act to be as alleged, unconstitutional, private parties cannot interfere by bill to ask it to be so declared, unless on account of some special damage or injury to them in person or property.” Any objection to the validity of a statute must be raised by one having the right to do so….

Moreover, it is hornbook law that a person whose interest is common to that of the public generally, in contradistinction to an interest peculiar to himself, lacks standing to attack the validity of a legislative enactment.

The plaintiffs claimed that if the votes of invalid “absentee elector” ballots were counted, that would “dilute” the vote totals of the valid in-person voters such as themselves, which would constitute an injury to their interests.

Basic in appellants’ position is the assumption that those who obtain absentee ballots, by virtue of statutory provisions which they deem invalid, will vote for candidates at the November election other than those for whom the appellants will vote and thus will cause a dilution of appellants’ votes.

The Penn. Supreme Court rejected that claim of injury on the basis that it was too speculative PRIOR TO THE ELECTION.

In our opinion, the interest of appellants is not peculiar to them, is not direct, and is too remote and too speculative to afford them, either in their individual capacities or in their claimed class representative capacity, a standing to attack these statutory provisions…. This assumption, unsupported factually, is unwarranted and cannot afford a sound basis upon which to afford appellants standing to maintain this action.

The Emergency Application makes the clear and direct point that controlling case law from the Penn. Supreme Court states that they lacked standing to challenge Act 77 prior to the election on the basis that no injury had yet occurred, and their claims of “likely” injury from vote dilution that would result from the use of “no excuse” mail-in voting was to “speculative” since the question of how such electors would vote ahead of the election could not be assumed.

In dismissing the Kelly complaint challenging votes cast pursuant to Act 77, the Supreme Court held that the suit was barred by “laches” because the Plaintiffs did not seek to challenge the statute when it was passed.

The Plaintiffs have clearly established a legal “Catch-22” by which the Penn. Supreme Court has shut the doors of the Courthouse to any meaningful challenge to Act 77.

I think this was done ENTIRELY by design, anticipating that the majority of the members of the Penn. Supreme Court would not be able to resist their partisan proclivities in moving quickly to dismiss the complaint and thereby springing the trap laid for them by Plaintiffs and their counsel.

They further drive home the point — twisting the dagger because of the impetuous nature of the Court’s ruling — by making the very valid point that in dismissing their complaint with prejudice, that decision is now “res judicata” with regard to their claim.  That means the eight named plaintiffs, in this case, can never again raise this challenge to the constitutionality of Act 77 — the matter has been decided against them for all time.  Basically, the Court not only kicked them out of the Courthouse, it boarded up the doors and windows after doing so.

As for the Emergency Application’s response to the use of “laches” as a basis to dismiss the complaint, the argument made by the Plaintiffs is consistent with my criticisms of the manner in which the equitable defense was applied in dismissing the case.  The note that the Penn. Supreme Court allowed no factual record to be established from which it could even make a determination as to whether they acted in a less than diligent fashion.  They refer to the language of the 1988 Court decision in Stilp where the State Defendants, in that case, conceded that “Laches” could never bar a constitutional challenge to the substance of a statute, as distinguished from a challenge to the process by which a statute was passed.   The Application also refers to the earlier Sprague case where the Penn. Supreme Court declined to apply “laches” to bar an election challenge even though over 6 months had passed since the Plaintiff was aware of the claim, yet waited until the eve of the election to file suit asserting the claim.  The Application quotes the same language I quoted from that case, where the Court declined to find the Plaintiffs had not acted diligently when the Defendants knew all the same facts and issues and did nothing themselves to seek judicial approval for their actions prior to the Plaintiff filing his case.

The Plaintiffs note that there is normally a heavy factual burden placed on the party asserting “laches” to show that plaintiff made a deliberate choice to bypass pre-election judicial relief, and bring the suit only after the election has taken place, and the State Defendants were never made to satisfy that burden.

Unlike in Sprague, Petitioners here are not lawyers, they did not know, nor could they have been reasonably expected to know, that they had viable legal claims well-before the election occurred. With respect to the candidate Petitioners, none are members of the state legislature, and none have responsibilities with respect Pennsylvania Election Code or its constitutionality. Conversely, as in Sprague, Respondent Boockvar is an attorney, and should be charged with knowledge of the Constitution, and particular knowledge of the Election Code. In Sprague, the taxpayer’s more than six-month delay in bringing an action challenging the election did not constitute laches thereby preventing the Commonwealth Court from hearing the constitutional claims. 550 A.2d at 188. Additionally, Respondent Pennsylvania General Assembly appears to have had knowledge of the constitutional issues involved and began the process of amending the constitution to allow no-excuse mail-in ballots. That process appears to be ongoing to this day.   

I expect Justice Alito will act quickly on this application — he might have done so while I’ve been writing this — and then refer the matter to the full court for further determination.

If Justice Alito denies the injunction, then that would be a signal that there are not five votes on the Court to enter into the fight over Pennsylvania’s 20 electoral votes in connection with any of the matters now pending or making their way to the Court.

If Justice Alito grants the injunction, preventing further steps at naming electors in Pennsylvania, and that decision is affirmed by four other Justices, then you can pretty well assume that it’s “Game On” in the SCOTUS with regard to the Pennsylvania Supreme Court and State/County Election Officials.